1. This is an appeal under Clause 10 of the Nagpur Letters Patent against the order of Mr. Justice P.P. Deo upon leave granted by that Judge. The matter arises out of execution proceedings. The appellant judgment-debtor before us, Pralhad Gangadhar Joshi, is the husband of the respondent Smt. Sakhubai wife of Pralhad Joshi. The parties were married sometime in 1940. In July 1949 the husband married a second time. Thereafter, it appears that he neglected to look after his first wife, the respondent, and so she filed a suit for maintenance in 1950. She obtained a decree for maintenance on 11-4-1951. By this decree she was given a monthly allowance of Rs. 20/- for her own maintenance plus Rs. 2/- for rent of accommodation suitable for her. The decree also awarded Rs. 400/- as arrears of maintenance. The respondent then commenced execution on 3-8-1951 out of which the present appeal arises. Upto this day, the appellant, her husband, has not paid a single pie towards the maintenance decree except a sum of Rs. 100/- in two instalments of Rs. 50/- each, which he was compelled to pay under orders of this Court as a condition precedent to the grant of stay of execution. Having availed of that advantage he has not paid subsequent instalments either and claims that the execution cannot proceed against him.
2. The relief which the respondent asked for in execution was by way of arrest of the appellant. An objection was raised, relying upon the proviso and the explanation to section 51 of the Code of Civil Procedure, that the judgment-debtor had not the means to pay the amount of the decree or a substantial part thereof, and that therefore he could not be arrested having regard to the provisions of clause (b) of the proviso to Section 51 read with the explanation to that section.
3. In order to determine this objection, it is necessary to state some further facts. The appellant is in the employ of the Khamgaon Municipal Committee where he is a clerk. He was at the material time in receipt of a salary, including allowances, of Rs. 84/- per month. Under Section 60, sub-section (1), Clause (i) as it stood on the date of the filing of the execution application, the salary to the extent of the first hundred rupees and one-half the remainder was exempt from attachment. Subsequently, the clause has been split up in two clauses as follows :
' (i) salary to the extent of the first hundred rupees and one-half the remainder in execution of any decree other than a decree for maintenance;
(ia) One-third of the salary in execution of any decree for maintenance.'
Thus, it will be seen that the Legislature specifically had in mind the case of execution of maintenance decrees in which case it made a distinction. In the case of execution of maintenance decrees there was no minimum amount of the salary mentioned as being exempt from attachment. Whatever the amount of the salary, it is liable to attachment subject only to the condition that one-third of it shall be exempt from attachment; whereas in the case of decrees other, than maintenance decrees, the salary itself must as a whole be above Rs. 100/- in order to be attachable and over Rs. 100/- only one-half of the remainder is attachable.
4. The question as to the effect of clause (i) or (1a) of sub-section (1) of Section 60, does not directly arise in the present case. The question arises only in an ancillary manner, because the appellant has invoked in his favour the provisions of proviso (b) to Section 51 read with the explanation thereof. The effect of this provision is that a judgment-debtor a against whom an application for his arrest or detention in prison is made, cannot be ordered to be so detained unless he is given an opportunity of showing cause why he should not be committed to prison and the Court is satisfied that the judgment-debtor has, or had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. Then there is the explanation added to the proviso which is as follows :
'Explanation; In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law of custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.'
What has been urged in the present case on behalf of the appellant by Mr. D.B. Padhye is that the salary of Rs. 84/- which the appellant was receiving was exempt from attachment in execution of the respondent's decree and that therefore that cannot be taken into account in calculating the means of the appellant judgment-debtor. The other contention which Mr. Padhye has raised is that the decree which granted maintenance to the respondent created a charge upon certain property and since the respondent has been given a charge, she must first exhaust all remedies against the charged property before she can claim that other property of the appellant be attached and that this must be taken into account in judging the means of the judgment-debtor.
5. Turning to the latter argument, we are quite unable to sec how the question as to whether the respondent's remedy primarily lies against the charged property can possibly affect the question which arises under Section 51, proviso (b) read with the explanation, as to what is the means of the judgment-debtor. Whether the charged property must be proceeded with primarily or not, the fact remains that until the property charged as also the salary tan be taken into account in judging his means although the remedy of the decree-holder may primarily be against the charged property. Mr. Padhye relied I upon the decision in Fatehchand v. Indian Cotton Co., Ltd. AIR 1935 Nag 129, in support of the proposition that where a charge is created in the decree over certain specified properties for payment of the decretal amount, the decree-holder must first exhaust his remedy against the charged property before proceeding against other property. In the case in AIR 1935 Nag 129 the remedy which the decree-holder was seeking was not the arrest or detention of the judgment debtor as in the present case, but the decree-holder in that case was seeking to execute his decree against other property of the judgment-debtor. In such a case, we can understand the principle -- we do not say that we necessarily agree with it -- that the decree-holder must first exhaust his remedy against the property on which he obtained a charge. But where, as here, all that the decree-holder seeks is a remedy which is against the person of the judgment-debtor, we do not see how that principle can be invoked. Moreover a contrary view has been taken in Shyamshankar v. Nathuram, by Vivian Rose, A. J. C. as he then was, and this view was not noticed in the subsequent case on which Mr. Padhye relied, namely AIR 1935 Nag 129. We need not however go into the merits of those decisions for the simple reason that we do not think that the principle of (cit. sup.) applies in the instant case.
6. Then Mr. Padhye relied upon the provisions of Clause (i) of the proviso to Sub-section (1) of Section 60 as it originally stood, and he urged that the salary was, by virtue of that provision which alone is applicable in the present case, exempt from attachment, and there it could not be taken into account in computing the means of the judgment-debtor. Clause (i) of Sub-section (1) of Section 60 as it stood on the date of the filing of the execution application in the present case on 3-8-51 ran as follows:
'(i) salary to the extent of the first hundred rupees and one-half the remainder.'
Mr. Padhye urged that it is this proviso which will govern this case because that was the law as it operated on the date of the execution application. We may however say that no action came to be taken upon the execution application, because the appellate Court set aside the order of the trial Court and held that an inquiry in accordance with Order 21, Rule 40, read with Section 51 of the Code of Civil Procedure had not been held by the trial Court and that therefore it was necessary to remand the case to the trial Court for holding such inquiry before deciding whether the judgment-debtor should be committed to civil prison or not. Therefore, the position as it appears to us is that today we are asked to execute the decree subject to the provisions of Section 60. This necessarily implies that we must have regard to the provisions of Section 60 as they stand today and not to the provisions of Section 60 as they may have been in the past. The right of execution can be availed of by the decree-holder by successive applications and it is not disputed that if the decree-holder were to make a fresh application today, we would have to consider it under the amended provisions of Section 60(1), proviso (i).
7. But even assuming that the provision of Clause (i) of the proviso to Section 60(1) as it stood before amendment, were applicable, still we are unable to see how the salary which was received by the judgment-debtor from the Municipal Committee cannot be taken into account in judging what were his means or capacity to pay. All that Clause (i) of the proviso to Section 60(1) (whether before or alter amendment) requires is that the salary only to a certain extent, shall be liable to attachment or sale. The learned single Judge has pointed out that from the date of the decree on 11-4-1951, the judgment debtor continued to receive his salary of about Rs. 84/- per month and that the fact that he was in receipt of such a salary can be taken into account in judging his means. In our opinion, in this view the learned Judge was perfectly right, and we say so with all respect. It seems to us that what Clause (i) of the proviso to Section 60(1) prohibits is that the salary qua salary cannot be attached or be brought to sale. In other words, so long as the money is in the hands of the employer as an amount due to the employee, the bar operates as against its attachment or sale. But once the salary is paid to the judgment-debtor and it becomes his property, we can see no reason or justification for holding that it would still continue to be untouchable or unsaleable in his hands. If that were so, then if the judgment debtor were to save howsoever large an amount of money, out of his salary, the whole of It would be exempt from attachment. But that was never the intention of the legislature.
8. We are fortified in our opinion by a case which arose under the analogous provisions relating to pensions. In Gnanasiromani v. Nedungadi Bank, Ltd., : AIR1944Mad263 a similar objection was raised that an amount of pension received by a pensioner was not liable to attachment by virtue of the provisions of section 11 of the Pensions Act. The provisions for purposes of the case before us were similar to those contained in Clause (i) of the proviso to Section 60(1). Somayya, J. held that after the amount of the pension had been paid over to the pensioner the amount ceases to be exempt from attachment under section 11 of the Pensions Act In that case also, the question arose in connection with section 51, proviso (b), and Somayya, J. observed:
'If after the amount of the pension has been paid over to the appellant the amount ceases to be exempt from attachment, I fail to see how it can be left out of account for the purposes of Section 51, proviso, Clause (b) and the explanation.'
In our opinion, in the present case also, the amount of the salary which the appellant had already received can be taken into account in judging his means because it was no longer salary after receipt by him and therefore no longer subject to the bar against attachment or sale.
9. Mr. Padhye relied upon two cases in support of his contention. The first is a Division Bench decision of this Court in Secy. of State v. Bai Somi AIR 1933 Bom. 350. In that case, all that was held was that a receiver could not be appointed to collect future maintenance and pay the amount or part of the amount over to the judgment-creditor because that would amount to an order for attachment and as such would be illegal under the provisions of Section 60(1), proviso (n). The case is wholly distinguishable upon its facts. The case also does not lay down that after the future maintenance is once paid to the person entitled to the Maintenance it still cannot be attached. That is the question involved in the present case. The other authority relied upon by Mr. Padhye is a decision of a Division Bench of this Court reported in Naginadas v. Ghelabhai, AIR 1920 Bom 58 . There the question was as regards a compulsory deposit due to an insolvent from a Railway Provident Fund. Once again we may point out that the question there was whether the amount was attachable while it was in the hands of the Railway and the question was not whether after it was paid to the person to. whom it was due, it could still be subject to attachment. In the present case, all that has been done is to take into account the salary of the judgment-debtor which he had actually received and which became his property. If that salary is taken into account, then there is no doubt that the finding of the learned single Judge that the appellant had the means to pay and that he neglected and refused to pay is correct.
10. Moreover, all these questions, in our opinion, do not really arise if we consider the provision of the newly enacted clause (la) of the proviso to Section 60(1). That clause permits attachment of two-thirds of the salary in execution of any decree for maintenance one third being exempt. Even apart from what we have pointed out above that there was no question here of the attachment of the salary after it was received by the judgment-debtor, the provisions of clause (la) make it quite clear that the judgment-debtor was in the present case receiving from his salary a sufficient enough amount to enable him to meet his obligations under the decree. His salary was Rs. 84/- whereas the decree in favour of the respondent was for Rs. 22/- per month. If two-thirds of his salary were liable to attachment and sale, then Rs. 56/- per month out of his salary was available for the satisfaction of the respondent's decree. That was in itself sufficient to satisfy the decree against the judgment-debtor. Therefore, it must be held that he had the means to pay; never the less he neglected or refused to pay.
11. In the result, therefore, we uphold the decision of the learned Single Judge, and dismiss the appeal with costs.
12. Appeal dismissed.